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Florida’s maze of motor vehicle insurance laws can be difficult to comprehend.

A case in point: Personal Injury Protection (PIP) and Property Damage – Liability are the only required coverages for an owner to lawfully operate his/her vehicle on Florida’s streets and highways. (PIP pays 80% of medical bills and 60% of lost wages for the insured up to $10,000, while Property Damage – Liability pays to repair or replace the other owner’s motor vehicle.) With these coverages, the vehicle owner is able to purchase a license plate and a vehicle registration.

Surprisingly, however, in the event of a motor vehicle accident involving injury or death, having the minimum mandatory coverages will not prevent the at-fault party from having her drivers license and all vehicle registrations from being suspended. Sections 316.066(3)(a)1 and 324.051(2)(a) Florida Statutes.

The type of insurance coverage that will prevent the suspensiong is Bodily Injury (a/k/a liability insurance) in the minimum amounts of $10,000 per person/$20,000 per accident. Section 324.021 (7) Florida Statutes.
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After being terminated from a job, an employee may apply for Unemployment Compensation benefits through the State of Florida Agency of Workforce Administration. The employer will be notified of the application and given a chance to respond. An agency administrator will then make a decision based on the paperwork submitted by the two parties. The losing party will be advised of the decision and given the right to appeal. If an appeal is taken, the matter will be set for an evidentiary hearing before an appeals referee.

Hearings are usually conducted by telephone, with the appeals referee contacting the parties from his or her office in Tallahassee, Florida. If the employee will be represented at the hearing by an attorney, the appeals referee should be provided with this information in writing in advance, including where to contact the employee (usually at the attorney’s office).

Importantly, no matter which party is the appellant, i.e., the party challenging the administrative ruling, at the evidentiary hearing the burden of proving misconduct* to deny benefits is always on the employer. Cullen v. Neighborly Senior Services, 775 So.2d 392 (Fla. 2d DCA 2000). Not only is the burden of proof on the employer, but the proof must be by a preponderance of the evidence. Tallahassee Housing Authority v. Unemployment Appeals Commission, 483 So.2d 413 (Fla. 1986).
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Frequently, employees hurt on the job can be compensated for their damages by third persons (i.e., someone other than the employer). This is so when the employee is injured or killed in the course of his or her employment by the negligence or wrongful act of a third-party tortfeasor.

Regardless of fault, Florida employees hurt while working are entitled to receive workers’ compensaiton benefits. Typically, those benefits, medical and indemnity (i.e., lost wages), are furnished by a workers’ compensation insurance company or a self-insured employer. When they are, Section 440.39(2) Florida Statutes gives the provider subrogation rights against the third party tortfeasor to the extent of the amount of compensation benefits paid. This is commonly referred to as a workers’ compensation lien.

Very rarely is the amount recovered through the lien equal to 100% of the benefits paid. The lien formula, outlined in 440.39(3)(a), is explained in Manfredo v. Employer’s Casualty Insurance Company, 560 So.2d 1162 (Fla 1990).

Here is the formula in a nutshell, along with an example: Third party settlement amount less (-) attorney fees and costs divided by (/) full case value = the % value of the wc lien.

Example:

  • WC lien (medical, indemnity, settlement, etc.): $ 100,000
  • $ 250,000 third party settlement less fees (40%) and costs = $ 135,000
  • Full case value: $ 1,000,000. (Settled for less due to tough liability, coverage limits, etc.)
  • $ 135,000 divided by $ 1,000,000 = 13.5%
  • 13.5% of $ 100,000 = $ 13,500.

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auto accident.jpg

  • Contact fire rescue (for injuries) and the police from the accident scene.
  • Take photographs of the vehicles – damage and location.
  • Photograph visible injuries.
  • Obtain names and contact information of independent eyewitnesses.
  • Cooperate with law enforcement. Describe the accident and provide your motor vehicle insurance information.
  • Before leaving the scene, obtain a copy of the short form police report or other police report identifying information.
  • If your vehicle must be towed from the accident, determine by whom and to where. Remove personal belongings before the vehicle is towed away.
  • If necessary, allow fire rescue to transport you to the hospital.
  • Provide fire rescue and the hospital with your vehicle and health insurance information.(The “PIP” coverage under your own insurance policy is primarily responsible for paying for a limited dollar amount of your medical care.)
  • Report the accident to your insurance company.
  • Obtain claim number from your insurance carrier.
  • If necessary, seek follow up medical care.
  • Provide medical providers with your vehicle and health insurance information.
  • The at-fault party’s Florida insurance company should pay for your vehicle damage. In some instances, it is easier to have your own insurance company handle the repairs. However, not every insurance policy covers the cost of such repairs. It is not required coverage. Check your policy to see if you have “Collision” coverage. (Be careful of what you say to the at-fault party’s insurance company. The company will be looking for ways to deny your claim.)
  • If your injuries are serious, contact a personal injury lawyer as soon as possible. The lawyer will handle a myriad of issues associated with your accident, including medical matters, insurance coverage, vehicle repair or total loss payments, etc.

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The standard in Florida for determining fault for injuries caused by harmful substances in food is known as the “reasonable expectation” test. Examples of harmful substances include bones, shells, and pits, not only substances completely foreign to food products such as metal, human nails, and bugs.

Obviously, claims resulting from foreign objects are easier to win than claims involving substances natural to the basic food product, but the “reasonable expectation” test nevertheless provides a basis for prevailing in the latter situation.

Not every jurisdiction within the United States follows the “reasonable expectation” test. Some jurisdictions represent the view that as a matter of law a harmful substance present in food which is natural to it cannot be common law negligence or a legal defect or breach of the implied warranty of reasonable fitness of such food. Florida has rejected this test as not being logical or desirable. Zabner v. Howard Johnson’s, Inc., 201 So.2d 824 (Fla. App. 4 Dist., 1967).
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To the surprise of many, Florida employees justly terminated from their jobs may nevertheless be entitled to receive unemployment compensation benefits. In other words, although an employee’s actions may justify discharge, the same conduct does not necessarily preclude entitlement to unemployment benefits. Betancourt v. Sun Bank Miami, N.A., 672 So.2d 37 (Fla. 3rd DCA 1996).

For Unemployment Compensation benefits to be denied, an employee’s behavior must rise to the level of “misconduct,” defined as acting willfully, wantonly, or be in substantial disregard of the employer’s interest. See §§ 443.036(29), and 443.101, Fla. Stat.
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Along with the right to vote, a free and vigorous jury system is a key element in the ability of Americans to control the type of society in which they live. Efforts by state and federal politicians at placing arbitrary caps on the amount of damages available to parties in civil cases is a direct attack on the jury system, and thus the power of the citizenry to control their own society.

Juries should be allowed to award the full measure of damages justified by the facts of each case after engaging in thoughtful deliberations. For the most part, their verdicts are dead-on appropriate. To argue otherwise is to ignore a large body of statistical evidence and question the ability of everyday people to judge wisely. Moreover, in those rare instances where a jury decides incorrectly, the aggrieved parties, be they the plaintiffs or the defendants, have available to them many tools (e.g. retrial; appeal; etc.) to correct the error.

Arbitrary damage award caps provide immunity from full accountability and should be opposed. Our civil jury system works exceedingly well and should remain free of arbitrary constraints.
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Exemptions are so common in FLSA cases that practitioners accepting new cases are wise to consider the possibility in all but the most obvious situations. Along with determining the amount of overtime hours, if any, logged by employees, disputes over the applicability or not of exemptions have formed the lion share of litigation in the FLSA cases handled in my office.

Common exemptions include (typically, salaried employees):

  • Executives
  • Administrators
  • Professional
  • Outside sales workers
  • Some computer workers

Knowing the case law is a must, but can be frustrating and confusing as the decisions, both regarding factual patterns and legal pronouncements, run the gamut. In some cases, the practitioner is unable to make a clear determination. In those instances, instinct is often the best judge of whether or not a case should be pursued.
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It is both a crime (3rd degree felony – Section 934.03(4) Florida Statutes), and an actionable civil violation (934.10) to record phone calls in Florida without the prior consent of the party or parties being recorded.

Exceptions do apply, see Cohen Brothers, LLC v. ME Corp., S.A., 872 So.2d 321 (Fla. 3DCA 2004), Jatar v. Lamaletto, 758 So.2d 1167 (Fla. 3DCA 2000), cause dismissed 786 So.2d 1186, and Stevenson v. State, 667 So.2d 410 (Fla 1DCA 1996), rehearing denied, but the general rule is that non-consensual recordings are prohibited.
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Unlike prior PIP statutes that applied the “usual and customary” standard to determine allowable charges for medical services, Florida’s 2008 version (627.736), mostly mandates that allowable charges are 200% of prospective payments for the same services under Medicare Parts A & B. (Main exceptions: emergency transportation and emergency hospital services.)

For the most part, the Medicare tie-in reduces the amounts payable to medical providers, and because the PIP statute also explicity prohibits medical providers from balance billing beyond the 20% remaining after PIP’s 80% payment of allowable charges (627.736(5)(a)5.), the Plaintiff’s (patient) out-of-pocket medical expenses are likewise reduced. No longer may a medical provider seek full reimbursement from the patient for charges unpaid after the receipt of PIP payments. Doing so under the 2008 PIP statute is an actionable offense.
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